While the courts have so far upheld liability waivers, these contracts are not foolproof, says Robert Betts, the lawyer at Beard Winter LLP who represented Blue Mountain. Minors, for one thing, are unable to legally contract with parties, so they can’t waive their right to sue. Betts also points out that any waiver is only as good as it is written. Ski resorts like Blue Mountain have done a good job of issuing uniform contracts perceived to be the “gold standard” in liability waivers. These waivers employ all-encompassing language that covers nearly every eventuality — including negligence on the part of the operator.

The explicit wording is necessary, says Betts, because if the waiver fails to cover a specific risk or injury, however obvious, the claims are actionable. “You don’t get any of these kinds of arguments if you’ve got a properly drafted waiver,” he says. “Absent that, none of the case law matters. It all starts with proper documentation and a well-drafted waiver.”

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